Woman wins VP role: man claims discrimination

Cases

Woman wins VP role: man claims discrimination

An objection to affirmative action policies was at the heart of a case heard by the Federal Court of Australia.

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An objection to affirmative action policies was at the heart of a case heard by the Federal Court of Australia.

The case concerned a Bluescope Steel employee whose employment was terminated in December 2017. He believed the company had taken adverse action against him because he’d exercised various workplace rights.

Claim of adverse action


The man’s position had become redundant, entitling him to a redundancy payment. In a ‘deed of separation’, the company offered to pay him almost a quarter of a million dollars. He was given to understand that if he did not accept the offer, his employment would be terminated with pay in lieu of notice. He believed that this violated his contract of employment, and took it as an attempt to coerce him into not exercising a workplace right.

Before his employment was terminated, the company had appointed another employee – a woman – to the position of vice president of health and safety. The man’s view was that in doing so, the company had discriminated against him because of his gender, or for reasons including his gender.

The man then applied to the court, seeking an order for reinstatement to his former position, compensation, penalties for the company, reimbursement for wages owing, interest, and costs.

Dispute about information to be shared


As part of the procedure in preparation for the trial, the ex-employee and the company were supposed to agree on what written information they would share beforehand, so that all parties would know what they would be facing at the trial. This process, known as ‘discovery’, involves both sides to a dispute handing over relevant documents. It helps the court understand what the real issues are, if there are areas of agreement, and whether some issues can be removed from the case.

In this case, the parties were not able to reach agreement about what documents they would make available, so a hearing was conducted in May 2019 to resolve this dispute.

The Federal Court’s orders, released in September 2019, focused on the worker’s wish to elaborate in his written submission on his view that he’d suffered discrimination based on his gender. He believed the woman had been appointed to the position in an act of either direct or indirect discrimination. The latter view relied on his suspicion that the company had imposed a condition or requirement that the successful candidate must be female, in accordance with the company’s ‘Diversity and Inclusion’ policy.

His view was that this requirement was not reasonable, and that it effectively disadvantaged him. He wanted to amend his statement of claim to include further information on this point, but the company opposed these amendments, citing a distinction between ‘material facts’ and ‘particulars’.

The judge did not find this helpful, and the reasons provided for the court’s orders drew attention to the fact that the Fair Work Act’s provisions in relation to gender-based discrimination do not apply if the appointment of the successful candidate is made for the purpose of ‘achieving equality between men and women’. This is based on the notion enshrined in the Convention on the Elimination of All Forms of Discrimination Against Women, which provides that ‘special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination’.

These provisions recognise that until recently, systematic discrimination against women has been the norm. Affirmative action measures aspire to create a new, fairer norm.

In the present case, the judge said that he’d need to be persuaded there was a proper basis in fact for the man to rely on the company’s ‘Diversity and Inclusion’ policy as grounds for his allegation that he had been the victim of indirect discrimination.

He also took into account the employer’s position that management had lost trust and confidence in the employee due to certain other matters concerning allegations of misconduct made against the man – and substantiated by an investigation – two months before he was dismissed.

Matters were complicated by a further allegation that his employment was terminated because of a workers compensation claim the man made on his second-last day in the position.

After considering the respective claims of the ex-employee, the company and its officers, the judge refused the man’s application to make a further amendment to his evidence, and ordered the company to release further documents relevant to the case, which will be heard next year.

The bottom line: Recruitment in accordance with affirmative action policies is not considered discriminatory if it is a ‘special measure aimed at accelerating de facto equality between men and women’.

Read the judgment


Montgomery v Bluescope Steel Ltd [2019] FCA 1558 (20 September 2019)
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